Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks

Government and Opposition

Volumn 39, Issue 2, 2004, Pages

  Slaughter, Anne Marie ^a  

^a PRINCETON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 11144355171     PISSN: 0017257X     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1477-7053.2004.00119.x     Document Type: Review

References (78)

1. Moises Naim, 'Five Wars of Globalization', Foreign Policy (January/February 2003), pp. 28-37.
2. Stephen Flynn, 'America the Vulnerable', Foreign Affairs, 81 (2002), pp. 60-74.
3. David E. Sanger, 'The World: When Laws Don't Apply; Cracking Down on the Terror-Arms Trade', New York Times, 15 June 2003, section 4, p. 4.
4. Robert Chote, 'A World in the Woods', Financial Times, 2 November 1998, p. 20.
5. The Financial Stability Forum was initiated by the Finance Ministers and Central Bank Governors of the Group of Seven industrial countries in February 1999, following a report on international cooperation and coordination in the area of financial market supervision and surveillance by the President of the Deutsche Bundesbank. In additions to representatives from the Basle Committee, IOSCO and IAIS, its members include senior representative from national authorities responsible for financial stability in significant international financial centres; international financial institutions such as the BIS, the IMF, the OECD and the World Bank; and committees of central bank experts. See 'A Guide to Fund Committees, Groups, and Clubs: Financial Stability Forum', on International Monetary Fund homepage (accessed 20 December 2002); available from http://www.imf.org/external/np/exr/facts/groups. htm#FSF.
6. American readers may be sceptical of these reports due to the widespread and completely false statistic about how few members of Congress have a passport. In fact, 93% of all members hold passports and average two trips abroad a year. Indeed, 20% claim to speak a foreign language. Eric Schmitt and Elizabeth Becker, 'Insular Congress Appears to be Myth', New York Times, 4 November 2000, section A, p. 9. What is true is that some members fear that their constituents will identify trips to meet their counterparts abroad with 'junkets', but that is a matter of public education.
7. Joseph S. Nye, Jr, The Paradox of American Power: Why the World's Only Superpower Can't Go It Alone, New York, Oxford University Press, 2002, p. 9.
8. Antonio F. Perez, 'Who Killed Sovereignty? Or: Changing Norms Concerning Sovereignty In International Law', Wisconsin International Law Journal, 14 (1996), pp. 463, 476.
9. Philip Alston, 'The Myopia of the Handmaidens: International Lawyers and Globalization', European Journal of International Law, 8 (1997), pp. 435, 441.
10. See Sol Picciotto, 'Networks in International Economic Integration: Fragmented States and the Dilemmas of Neo-liberalism', Northwestern Journal of International Law and Business, 17 (1997), pp. 1014, 1047.
11. Ibid., p. 1049.
12. Joseph H. H. Weiler, To Be a European Citizen: Eros and Civilization', in Joseph H. H. Weiler, The Constitution of Europe, Cambridge, Cambridge University Press, 1999, p. 349.
13. On Public Citizen homepage (accessed 1 July 2003); available from http://www.citizen.org.
14. 'Harmonization', on Public Citizen homepage (accessed 1 July 2003): available from http://www.citizen.org/trade/harmonization.
15. 'What Is Harmonization?', on Public Citizen homepage (accessed 1 July 2003); available from http://www.citizen.org/trade/harmonization/articles.cfm? ID=4390.
16. I b i d.
17. I b i d.
18. Charles Fried, 'Scholars and Judges: Reason and Power', Harvard Journal of Law and Public Policy, 23 (2000), pp, 807-32, 818.
19. Ruth Bader Ginsburg and Deborah Jones Merritt, 'Affirmative Action: an International Human Rights Dialogue', Cardozo Law Review, 21 (1999), pp. 253, 273.
20. Christopher McCrudden, 'A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights', Oxford Journal of Legal Studies, 20 (2000), pp. 499-532, 507-8.
21. Yash Ghai, 'Sentinels of Liberty or Sheep in Wolfs Clothing? Judicial Politics and the Hong Kong Bill of Rights', Modern Law Review, 60 (1997), pp. 459, 479, quoted in ibid., p. 507.
22. Yash Ghai, 'Sentinels of Liberty or Sheep in Wolfs Clothing? Judicial Politics and the Hong Kong Bill of Rights', Modern Law Review, 60 (1997), pp. 459, 479, quoted in ibid., p. 507.
23. Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, New York, United Nations, Department of Public Information, 2000, p. 70; Jean-François Rischard, 'A Novel Approach to Problem-Solving', Global Agenda 2003, World Economic Forum, 1 (2003), pp. 30, 31; Wolfgang H. Reinicke, 'The Other World Wide Web: Global Public Policy Networks', Foreign Policy (Winter 1999/2000), p. 44.
24. Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, New York, United Nations, Department of Public Information, 2000, p. 70; Jean-François Rischard, 'A Novel Approach to Problem-Solving', Global Agenda 2003, World Economic Forum, 1 (2003), pp. 30, 31; Wolfgang H. Reinicke, 'The Other World Wide Web: Global Public Policy Networks', Foreign Policy (Winter 1999/2000), p. 44.
25. Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, New York, United Nations, Department of Public Information, 2000, p. 70; Jean-François Rischard, 'A Novel Approach to Problem-Solving', Global Agenda 2003, World Economic Forum, 1 (2003), pp. 30, 31; Wolfgang H. Reinicke, 'The Other World Wide Web: Global Public Policy Networks', Foreign Policy (Winter 1999/2000), p. 44.
26. Martin Shapiro, 'Administrative Law Unbounded: Reflections on Government and Governance', Indiana Journal of Global Legal Studies, 8 (2001), pp. 369-78, 369.
27. Ibid., p. 376.
28. Members of the Technical Committee include: Australia, Canada, France, Germany, Hong Kong, Italy, Japan, the Netherlands, Switzerland, the UK and the USA. On OICU-IOSCO homepage (accessed 1 July 2003); available from http://www.iosco.org/lists/display_committees.cfm?cmtid=3.
29. David Howell, 'The Place of the Commonwealth in the International Order', Round Table, 345 (1998), p. 30.
30. Martin, 'Notes for an Address', op. cit., n. 1.
31. On EUR-Lex, European Union Law homepage (accessed 1 July 2003); available from http://www.europa.eu.int/eur-lex/.
32. See Globe International Homepage (accessed 1 July 2003); available from http://www.globeinternadonal.org.
33. Steve Charnovitz, Trans-Parliamentary Associations in Global Functional Agencies', Transnational Associations, 31: 2 (2002), pp. 88-91, 88.
34. Ibid., p. 89.
35. Mike Moore, 'Promoting Openness, Fairness and Predictability in International Trade for the Benefit of Humanity', Speech to the Inter-Parliamentary Union meeting on international trade, 8 June 2001, on World Trade Organization Homepage (accessed 1 July 2003); available from http://www.wto.org/french/news_f/spmm_f/spmm64_f.htm.
36. Annan, We the Peoples, op. cit., p. 70, n. 23.
37. Wolfgang H. Reinicke and Francis Deng, Critical Choices: The United Nations, Networks, and the Future of Global Governance, Ottawa, International Development Research Centre, 2000.
38. Reinicke, 'The Other World Wide Web', op. cit., n. 23.
39. Ernst-Ulrich Petersmann, 'Constitutionalism and International Organizations', Northwestern Journal of International Law and Business, 17 (1997), p. 398; Ernst-Ulrich Petersmann, 'Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?', New York University Journal of International Law and Politics, 31 (1999), p. 753.
40. Ernst-Ulrich Petersmann, 'Constitutionalism and International Organizations', Northwestern Journal of International Law and Business, 17 (1997), p. 398; Ernst-Ulrich Petersmann, 'Constitutionalism and International Adjudication: How to Constitutionalize the U.N. Dispute Settlement System?', New York University Journal of International Law and Politics, 31 (1999), p. 753.
41. Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton, Princeton University Press, 2001, p. 4.
42. Ibid., p. 94.
43. Ibid., pp. 94-5.
44. 'Notes for an address by the Honourable Paul Martin, to the Royal Institute of International Affairs', Ottawa, 24 January 2001, On G20 Homepage (accessed 1 July 2003); available from http://www.fin.gc.ca/news01/01-008e.html.
45. Joshua Cohen, 'Deliberation and Democratic Legitimacy', in Alan Hamlin and Philip Pettit (eds), The Good Polity: Normative Analysis of the State, New York, Blackwell, 1989, p. 74.
46. Loucks v. Standard Oil Co., 120 N.E. 198, 201 (NY 1918).
47. The full faith and credit clause of the constitution requires each state to recognize the acts of another. US Const., art. 4, §1, cl. 1. It is a basic instrument of federalism, knitting the states into one larger polity.
48. Laker Airways Ltd. v. Sabena, Belgian World Airlines 731 F. 2d 909 (DC Cir. 1984).
49. 159 US 113, 163-4 (1895).
50. Beginning with United States v. Aluminum Co. of America (Alcoa), the Sherman Act was held applicable to foreign conduct that had a direct, substantial, and foreseeable effect on US trade and commerce. 148 F.2d 416, 440-5 (2d Cir. 1945). This 'direct effect' jurisdiction, quickly became a source of tension with other states that argued that the United States had no right to assert jurisdiction over persons that were neither present nor acting within US territory. Governments whose nationals and interests were affected by US antitrust law filed diplomatic protests and amicus briefs, refused requests for assistance, invoked national secrecy laws, and eventually began passing blocking laws specifically aimed at the frustration of US antitrust enforcement. Spencer Weber Waller, 'National Laws and International Markets: Strategies of Cooperation and Harmonization in the Enforcement of Competition Law', Cardozo Law Review, 18 (1999), pp. 1111, 1113-14; see also Joel R. Paul, 'Comity in International Law', Harvard International Law Journal, 32 (1991), pp. 1, 32; Joseph P. Griffin, 'EC and U.S. Extraterritoriality: Activism and Cooperation', Fordham International Law Journal, 17 (1994), pp. 353, 377.
51. Beginning with United States v. Aluminum Co. of America (Alcoa), the Sherman Act was held applicable to foreign conduct that had a direct, substantial, and foreseeable effect on US trade and commerce. 148 F.2d 416, 440-5 (2d Cir. 1945). This 'direct effect' jurisdiction, quickly became a source of tension with other states that argued that the United States had no right to assert jurisdiction over persons that were neither present nor acting within US territory. Governments whose nationals and interests were affected by US antitrust law filed diplomatic protests and amicus briefs, refused requests for assistance, invoked national secrecy laws, and eventually began passing blocking laws specifically aimed at the frustration of US antitrust enforcement. Spencer Weber Waller, 'National Laws and International Markets: Strategies of Cooperation and Harmonization in the Enforcement of Competition Law', Cardozo Law Review, 18 (1999), pp. 1111, 1113-14; see also Joel R. Paul, 'Comity in International Law', Harvard International Law Journal, 32 (1991), pp. 1, 32; Joseph P. Griffin, 'EC and U.S. Extraterritoriality: Activism and Cooperation', Fordham International Law Journal, 17 (1994), pp. 353, 377.
52. Beginning with United States v. Aluminum Co. of America (Alcoa), the Sherman Act was held applicable to foreign conduct that had a direct, substantial, and foreseeable effect on US trade and commerce. 148 F.2d 416, 440-5 (2d Cir. 1945). This 'direct effect' jurisdiction, quickly became a source of tension with other states that argued that the United States had no right to assert jurisdiction over persons that were neither present nor acting within US territory. Governments whose nationals and interests were affected by US antitrust law filed diplomatic protests and amicus briefs, refused requests for assistance, invoked national secrecy laws, and eventually began passing blocking laws specifically aimed at the frustration of US antitrust enforcement. Spencer Weber Waller, 'National Laws and International Markets: Strategies of Cooperation and Harmonization in the Enforcement of Competition Law', Cardozo Law Review, 18 (1999), pp. 1111, 1113-14; see also Joel R. Paul, 'Comity in International Law', Harvard International Law Journal, 32 (1991), pp. 1, 32; Joseph P. Griffin, 'EC and U.S. Extraterritoriality: Activism and Cooperation', Fordham International Law Journal, 17 (1994), pp. 353, 377.
53. Spencer Weber Waller, 'The Internationalization of Antitrust Enforcement', Boston University Law Review, 77 (1997), pp. 343, 375. By 1988 the Department of Justice stated that it would only challenge foreign anticompetitive conduct that directly harmed US consumers. Robert D. Shank, The Justice Department's Recent Antitrust Enforcement Policy: Toward A "Positive Comity" Solution to International Competition Problems?', Vanderbilt Journal of Transnational Law, 29 (1996), pp. 155, 165.
54. Spencer Weber Waller, 'The Internationalization of Antitrust Enforcement', Boston University Law Review, 77 (1997), pp. 343, 375. By 1988 the Department of Justice stated that it would only challenge foreign anticompetitive conduct that directly harmed US consumers. Robert D. Shank, The Justice Department's Recent Antitrust Enforcement Policy: Toward A "Positive Comity" Solution to International Competition Problems?', Vanderbilt Journal of Transnational Law, 29 (1996), pp. 155, 165.
55. Charles F. Rule, 'European Communities-United States Agreement on the Application of their Competition Laws Introductory Note', International Legal Materials, 30 (1991), pp. 1487, 1488. The US signed a comparable agreement with Germany in 1976. See Steven L. Snell, 'Controlling Restrictive Business Practices in Global Markets: Reflections on the Concepts of Sovereignty, Fairness, and Comity', Stanford Journal of International Law, 33 (1997), pp. 215, 234.
56. Charles F. Rule, 'European Communities-United States Agreement on the Application of their Competition Laws Introductory Note', International Legal Materials, 30 (1991), pp. 1487, 1488. The US signed a comparable agreement with Germany in 1976. See Steven L. Snell, 'Controlling Restrictive Business Practices in Global Markets: Reflections on the Concepts of Sovereignty, Fairness, and Comity', Stanford Journal of International Law, 33 (1997), pp. 215, 234.
57. See 'Agreement Regarding the Application of their Competition Laws, 23 Sept. 1991, E.C.-U.S.', International Legal Materials, 30 (1991), p. 1491.
58. Ibid., pp. 1056-9.
59. See Griffin, 'EC and U.S. Extraterritoriality', op. cit., p. 376, n. 47.
60. James R. Atwood, 'Positive Comity - Is It a Positive Step?', in Barry Hawk (ed.), International Antitrust Law & Policy: Annual Proceedings of the Fordham Corporate Law Institute, Irvington-on-Hudson, NY, Transnational Juris Publications, 1993, pp. 79, 84.
61. See Rule, 'European Communities-United States Agreement', op. cit., p. 1488, n. 49.
62. See Arwood, 'Positive Comity', op. cit., p. 84, n. 53.
63. See Rule, 'European Communities-United States Agreement', op. cit., p. 1487, n. 49.
64. Joseph P. Griffin, 'EC/U.S. Antitrust Cooperation Agreement: Impact on Transnational Business', Law and Policy in International Business, 24 (1993), pp. 1051, 1063.
65. See generally Joel Klein and Preeta Bansal, 'International Antitrust Enforcement in the Computer Industry', Villanova Law Review, 41 (1996), pp. 173, 179.
66. See Rule, 'European Communities-United States Agreement', op. cit., p. 1490, n. 49. This increased efficiency has also proven attractive to businesses themselves. In United States v. Microsoft Corp., after learning that both the Department of Justice and the European Commission were investigating their licensing practices, Microsoft agreed to waive its confidentiality rights under US antitrust law to permit the two authorities to exchange confidential information. See Shank, 'The Justice Department's Recent Antitrust Enforcement Policy', op. cit., p. 179, n. 48.
67. See Rule, 'European Communities-United States Agreement', op. cit., p. 1490, n. 49. This increased efficiency has also proven attractive to businesses themselves. In United States v. Microsoft Corp., after learning that both the Department of Justice and the European Commission were investigating their licensing practices, Microsoft agreed to waive its confidentiality rights under US antitrust law to permit the two authorities to exchange confidential information. See Shank, 'The Justice Department's Recent Antitrust Enforcement Policy', op. cit., p. 179, n. 48.
68. Merit Janow, 'Transatlantic Cooperation on Competition Policy,' in Simon J. Evenett, Alexander Lehmann, and Benn Steil (eds), Antitrust Goes Global, Washington, DC, The Brookings Institution, 2000, pp. 29-56, 51.
69. I b i d.
70. See Atwood, 'Positive Comity', op. cit., p. 88, n. 53.
71. David L. Shapiro, Federalism: A Dialogue, Evanston, IL, Northwestern University Press, 1995, p. 108.
72. I b i d.
73. George A. Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States', Columbia Law Review, 94 (1994), p. 331.
74. Consolidated Version of the Treaty Establishing the European Community, Art. 5, Official Journal C 325 of 24 December 2002. According to the relevant provisions of this Article:In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.
75. Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, Cambridge, MA, Harvard University Press, 1995, p. 4.
76. Ibid., p. 26. As noted above, Wolfgang Reinicke similarly emphasizes the extent to which globalization, unlike interdependence, penetrates the deep structure and strategic behaviour of corporations and other actors in the international system.
77. I b i d.
78. Eyal Benvenisti, 'Domestic Politics and International Resources: What Role for International Law?', in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law, New York, Oxford University Press, 2000, p. 109.